Law as Communicative Praxis: Toward a Rhetorical Jurisprudence

Klinger, Geoffrey D., Argumentation and Advocacy

"It is the province of knowledge to speak and it is the privilege of wisdom to listen."

Oliver Wendell Holmes The Poet at the Breakfast Table

In the recent film Mindwalk, the center of action is focused on the intellectual exchange of a poet, a scientist, and a politician. The conversation is unplanned, and often awkward, for the three characters in this film do not share the same intellectual vocabulary, but there is an unmistakable desire to both begin and continue the conversation. The conversation seems aimed toward translating a concern for the human condition into appropriate political praxis. The important theoretical moment for the film is the point at which the conversation begins. This is also the important theoretical moment for this essay. We seek to reconfigure an intellectual relation in the hope of reinvigorating a critical conversation. A debate similar to the one in Mindwalk has continued for hundreds of years in jurisprudence, or the "philosophy of law."(1) Specifically, the dialectical relation of scientist/poet has been represented by analytic philosophy/rhetorical theory. Or, in other words, philosophy and rhetoric have served as competing intellectual foundations since the time the law was first theorized. So let us begin with our conclusion: both the theory and practice of jurisprudence have changed markedly over their lengthy history. In fact, contemporary jurisprudence is such that it bears almost no intellectual relationship to the concept articulated at its origins. Perhaps this is most obvious when we realize, historically, that the theory of law and the theory of rhetoric had an almost synchronous relation. Today, however, it is a relation that is substantially ignored, and overtly denied. Gerald Wetlaufer reminds of this intellectual shift in the theory of law which, he argues, culminates in a "deeply ironic resistance to rhetoric" (1555).

The difference we posit becomes clearest when one compares origins to end points. Jurisprudence was originally an intellectually holistic concept. It boldly crossed the gap from theoria to praxis and back again. For Aristotle, who represents the pragmatic synthesis of rhetoric and philosophy, conceptions of the law were informed by a confluence of dialectic, rhetoric, ethics, politics, even poetics. Today, however, jurisprudence has been appropriated by a discrete and insular theory of law, articulated largely by the analytic/positivist/formalist tradition. As a result, contemporary jurisprudence becomes an intellectually truncated philosophy of law; indeed, it more or less operates as the "science" of law.(2) Questions of ethics and normativity, of politics and rhetoric, once the heart of the classical model of jurisprudence, are now quickly dismissed by the analytic tradition. Even Black's Law Dictionary, the central text for legal concepts and terms, demonstrates the near complete hegemony of the analytic tradition in contemporary jurisprudence. It purports to define "jurisprudence" as:

The philosophy of law, or the science which treats the principles of positive law and legal relations. In the proper sense of the word, 'jurisprudence' is

the science of law, namely, that science which has for its function to ascertain the principles on which legal rules are based, so as not only to classify those rules in the proper order, and show the relation in which they stand to one another, but also to settle the manner in which new or doubtful cases should be brought under the appropriate rules. Jurisprudence is more a formal than a material science. It has no direct concern with questions of moral or political policy, for they fall under the province of ethics and legislation . . . . (emphasis added) ("Jurisprudence" 767)

The end result of the aforementioned hegemony of the analytic tradition in the theory of law is an often subtle, but unmistakable transformation in the way the law is both theorized and practiced. James Boyd White is one scholar who understands and laments this transformation. …

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